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This past summer I had the amazing opportunity to intern with the United States Court of Appeals for the Seventh Circuit (thank you, Professor Hammer, for organizing such a rewarding internship program). I would highly recommend this internship to anyone. For me, the internship was truly a once in a lifetime experience since, as many of you may know, I am a major moot court nerd. While interning at the Seventh Circuit, I observed upwards of seventy oral arguments, including a rehearing en banc, a Foreign Intelligence Surveillance Act case, and a death penalty case. During these arguments, I would take notes on attorney conduct, questions from the judges, and the overall atmosphere of the courtroom. I would like to share with you the top five oral arguments tips I learned while at the Seventh Circuit.

(1) Answer the Judge’s Question Directly

Questions are a gift because they allow you to know exactly what is bothering the judge. Too often, people see questions as an interruption or a nuisance and, thus, fail to take full advantage of the opportunity the question presents. I cannot tell you how many times I heard the phrase, “You’re not answering my question,” and the follow-up phrase, “It’s a simple yes or no answer.” The best way to handle questions is to answer directly—preferably with a yes or no when appropriate—and then say, “Let me explain.” This answers the judge’s question and also signals that further explanation is necessary. When you dodge a judge’s question, you lose credibility and frustrate the judge. Read more »

On Monday, the United States Supreme Court quietly denied certiorari on cases from three federal courts of appeals (the 4th Circuit, the 7th Circuit, and the 10th Circuit) that found bans on same-sex marriage to be unconstitutional. The Court’s denial leaves those federal decisions standing, thus making same-sex marriage legal in five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. The decision is also likely to mean that the other states covered by those federal appellate court districts—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—will also allow same-sex marriage. Or at least, they can’t ban it.

Most surprising to many SCOTUS observers was that the Court made no comment about its decision to deny certiorari. Read more »

Judge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument. Read more »

It’s been an eventful summer at the United States Court of Appeals for the Seventh Circuit in Chicago. In addition to deciding high-profile cases involving same-sex marriage and the validity of Wisconsin’s “Act 10” legislation, the Court has issued noteworthy opinions addressing criminal sentencing procedure and the law of evidence.

Seemingly out of the blue, the Court has signaled a new willingness to take a closer look at the imposition of supervised release conditions in federal criminal cases. Prosecutors, defense attorneys, judges, and probation officers will all be required to “up their game” in response to this new scrutiny. Read more »

Some of the best and the worst of the legal profession can be seen through Socha v. Boughton, No. 12-1598, decided by the Seventh Circuit this past week. The substance of the case involved the court’s applying — for the first time — the doctrine of equitable tolling to excuse a late filing by a state prisoner in a habeas case. This required a conclusion that the district court had abused its discretion in concluding otherwise, including the catchy characterization that “[t]he mistake made by the district court and the state was to conceive of the equitable tolling inquiry as the search for a single trump card, rather than an evaluation of the entire hand that the petitioner was dealt” (slip op. at 19).

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Judge John L. Coffey, a man of strong conviction and strong faith, was remembered for his positive impact on family, the courts, and the legal profession in a ceremony April 17 in the Appellate Courtroom of Eckstein Hall.

Nine judges of the United States Court of Appeals for the Seventh Circuit were on the bench at the ceremonial session in memory of Coffey, who died last November at 90. Chief Judge Frank H. Easterbrook said the location was appropriate because Coffey “thought the world of this school—this is where Jack Coffey would have wanted this celebration.” Coffey graduated from Marquette University in 1943 and from Marquette Law School in 1948 and was well known for his loyalty to Marquette.

Beginning in 1954, Coffey served as a judge in Milwaukee County, until he became a member of the Wisconsin Supreme Court in 1978. He joined the federal appeals court in 1982. In 2012, he announced he would not take part in cases—although, as was noted during the session, he didn’t really say he was retiring either.

“Jack did not see much ambiguity,” Easterbrook said. He described Coffey as a passionate advocate who once emphasized a written point he was making by underlining, bold-facing, and italicizing the passage. “He missed only the opportunity to put it in a larger font,” Easterbrook said.

Coffey was “a rock when it came to defending his principles,” Judge Rudolph T. Randa of the United States District Court for the Eastern District of Wisconsin told the audience of about 200.

Marquette Law School Dean Joseph D. Kearney said, “Jack Coffey focused relentlessly on the future,” including the future of the Law School. Coffey was one of the first alumni to encourage Kearney to consider leading the Law School out of Sensenbrenner Hall.

Francis Schmitz, who was a law clerk for Coffey in 1983-84, said that working for Coffey “was not unlike the parental concept known as tough love.” The judge was a demanding, no-excuses, no- cutting-corners boss who cared greatly and compassionately about those who worked for him, Schmitz said.

Peter Robbins, a grandson of the judge, said Coffey asked for divine guidance every day because he sat in judgment of others. He believed in hard work—“he always endeavored to know more”—but his family meant everything to him, Robbins said.

Coffey’s son, Peter Coffey, recounted how his father was one of ten children, all of whom graduated from Marquette.

Easterbrook said that Coffey had a reputation of being a dissenter, but during Coffey’s time on the federal appeals bench, there were 93 cases heard en banc and Coffey was in the majority in 78. He wrote the opinions in 11, which, Easterbrook said, was more than his share. “We miss his presence in our circles,” Easterbrook said.

At sentencing, defendants are expected to express remorse for their crimes. Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis. But what if the defendant chooses to say nothing at all at sentencing? On the one hand, a judge might infer a lack of remorse from the defendant’s silence. But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.). Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing. The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis. On appeal, Keskes argued that the sentence violated his right to remain silent. The Seventh Circuit, however, affirmed.

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences. More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm. First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide. Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin. Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first. Read more »

Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government. The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines. Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination. Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender. By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do. No appeal was filed. By the time Dowell realized this, it was already too late for an appeal to be taken. Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment. Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Last week I bemoaned how the Seventh Circuit had thoroughly botched the already confusing state of affairs that is the elements of a prima facie copyright infringement claim. But as a bonus, the Peters v. West opinion also had troubling things to say about what is now required to successfully plead a copyright infringement claim under the new “plausibility” regime announced by the Supreme Court in Twombly and Iqbal.

As a refresher, here’s how the Peters court defined the element of infringement (the other element for a claim of copyright infringement being ownership of a valid and registered copyright):

Fundamentally, proving the basic tort of infringement simply requires the plaintiff to show that the defendant had an actual opportunity to copy the original (this is because independent creation is a defense to copyright infringement), and that the two works share enough unique features to give rise to a breach of the duty not to copy another’s work.

Note that the court is discussing what the plaintiff must ultimately prove, which even after Twombly and Iqbal is not necessarily what the plaintiff must allege. Swierkiewicz v. Sorema, which distinguished between those two, is still good law; Iqbal simply requires that the plaintiff allege enough to make a claim plausible, which may or may not require pleading specific facts. Nevertheless, many courts even pre-Twombly have been requiring plaintiffs to march through the elements in their complaints, and now post-Iqbal, each of those elements must be “plausible.”

So what does a plaintiff, according to the Seventh Circuit, now have to plead in order to plausibly allege infringement? Read more »

When it comes to parking enforcement, the City of Milwaukee has a problem. Local media have concluded from interviews and public records that the City issues parking tickets without paying close attention to whether they are warranted. In 2011 alone, the City reportedly canceled over 38,000 parking tickets, often because they were plainly unjustified. Nearly 8,000 tickets, for example, were issued for “expired” parking meters that in fact had not expired. Given personal experience, I have little doubt that these figures are accurate.

The extremely high number of unwarranted tickets is not an accident. Instead, it appears to be the result of a policy to issue tickets indiscriminately for the singular purpose of revenue enhancement. The City’s manager for parking enforcement practically admits as much; he recently told a local news station that the policy “is to issue the citation and straighten it out later.” Media coverage suggests that the City implements this policy through an informal quota system: Several employees of the Department of Public Works have revealed that supervisors expect enforcement personnel to issue certain numbers of tickets per shift for specified areas, and that supervisors punish those who fail to meet quotas by handing out undesirable shift hours. In other words, enforcement personnel are under the gun; unless they want to work at 3:00 in the morning, they have to issue bushels of tickets. Because this system appears to give credit even for unjustified citations, there is little incentive for personnel to make sure that they issue citations only when deserved. So the high error rate is no surprise. The effect is to impose upon thousands of law-abiding residents the burden of either paying a fine or establishing the absence of a violation. For many, the hassle is worse than the dollar value of the fine. Read more »